>> good to have arthel with us today. you'll be back tomorrow. >> 6 p.m. eastern time. >> look forward to. thanks for joining us. >> thanks, jon. "america live" starts right now. >> megyn: fox news alert on what is being described as an embarrassing setback for the obama administration as a federal appeals court panel unanimously ruled that president obama violated the constitution. welcome to "america live" everyone, i'm megyn kelly, we have been talking about this story for a while and now we have a ruling. it all stems from a fierce election-year showdown between the president and congressional republicans when president obama bypassed them with a series of recess appointments. it included -- it involved, i should say, three vacancies on the national labor relations board. that's the board that adjudicates disputes between the companies and the union. when a pro democratic, tend to

stack it with pro labor guys and the president gets to do that. however, they require senate approval and president obama couldn't get senate approval for the guys he wanted to put on the nlrb. what did he do? he waited until he believed the senate was in recess and then he stacked the board. well, the senate came back and said, we weren't in recess and fine to do recess appointments, but we weren't in recess and you violated the constitution and now, a federal appeals court has just agreed with the president-- i should say with the republicans. now, the president claimed that he acted properly. he said the senate was away for the holidays, but this federal court did not agree. now, the ruling could also throw into question the president's he recess appointment of richard cordray, to head the consumer financial protection bureau. cordray's appointment made at the very same time has also been challenged in a separate case and we saw him yesterday as the president was singing

his praises at the white house on this broadcast. ed henry is live at the white house with the latest on this, our chief correspondent and this is definitely not the result that the obama administration wanted. >> that's right, a brushback for the president, he was out a few moments ago announcing his new chief of staff at the white house, dennis mcdo mcdoneough, but as you lay ow the facts, what the general republicans did last year when he used the recess appointment authority, they were making sure that the senate was in pro forma session so that it technically did not go into recess, and at the time republicans said it was an abuse of executive power and white house insisted no, no, no, the senate is in fact in recess at that time. and the suit that was brought, that caused all of this was a man in washington state, noel canning, who bottles and

distributes soft drinks, nlrb came into washington state and i had he had to enter into collective bargaining with unions in washington state and he basically said the nlrb does not have the power because these folks were put on the board improperly and republicans like senator roger wicker told fox news radio they think it's an important ruling by the court. take a listen. >> it was just a -- a huge massive overstep of executive power and an unconstitutional power grab and so i'm relieved, but not surprised that the appeals court would rule in our favor. >> reporter: now, we're getting early indication that the white house is going to try to fight this and te it to the supreme court. labor unions of course, also fighting this. rich trumka, the president of the afl-cio put out a written statement saying we strongly disagree with the court's reasoning and decision and fully expect this radical

decision to be reversed and that other courts addressing this issue will uphold the president's recess appointment authority. in the meantime, the appointees to the nlrb remain in their jobs and the nlrb remains open for business, although we just spoke a short time ago to a conservative critic of the nlrb who is telling us they believe if you combine this appeals court decision with the fact there was a recent decision in a steel case suggesting the nlrb has to have three members at one time to have a quorum to have any decisions at all, they think if you couple these two cases together it will call into questions a whole bunch of decisions made by this labor relations board in recent months, megyn. >> megyn: they' havthey've clip president obama's wings thought he had the power and the court telling no, there are limits what you can do. and the senate has to be in recess not gone for a day or two.

>> the white house sharply disagreed and jay carney in front of the cameras at 1:30 p.m. eastern time and they'll take it to the supreme court because they think the president has the power. >> megyn: they're going to try and up to the supreme court whether they want to hear this case or not. and the attorney jay sekulow on the program who you know. is a frequent guest here, but filed a friend of the court brief and argued they had violated the constitution and he's going to join us in what this win means, are these three appointees now gone? what does it do for president obama's power and is the supreme court likely to review this? and he'll be here and julian epstein with perspective from the other side moments from now. another big story in washington playing out on the streets of the capitol now for what organizers say is one of the biggest pro-life demonstrations in u.s. history and former candidate rick

santorum speaking there and his wife behind him. and on the capitol for the annual march for life rally, activists gathering to overturn the roe versus wade decision that legalized abortion nationwide on this day in 1973. and right now, they are marching toward the supreme court. last year an estimated 400,000 pro-life activists hit the street. this year's event is expect today top that and they are, you see outside on a very cold day to make their point for america. well, in texas, a 3 billion dollar power plant project is now dead. 4,000 potential jobs are now lost, says the company. and the people behind the project say the epa is to blame. the whole thing involved what was supposed to be a state of the art coal fired plant to be built in corpus christi, texas. lauren simonetti is reporting on the fox business network, what went wrong for the company here? >> hi, megyn.

good afternoon. this is a story, the power plant came, and they looked to get the appropriate air and water permits to need to build the power plant and they wanted to use something petroleum coke or pet-coke part of the petroleum process, a remnant and use that in the plant and usually it's sent internationally and they were like let's use it here in the u.s., it will help texas. that's not happening anymore, the plant will not be up and running and 4,000 jobs direct and indirect won't be had and a billion dollars in local spending over the next ten years, that was predicted, is not going to come into fruition, not to mention that the owner, chase power, looking to liquidate itself right now and it's blaming outright the epa. >> megyn: originally they'd been granted the permit. >> right. >> megyn: reversed once others like the sierra club, and

across from a residential area and doctors saying it would cause heart attacks and different things and disputed by the power plant folks, but this is a big win for those environmental agencies. >> a huge win for them. they have he' said their goal outright they're look to go retire more than 200 coal power plants here in the u.s. over the next five years and with that, you have to remember the coal industry employs about 90,000 people, a lot of workers and also responsible for more than 40% of total electricity used in the united states so they're on a mission and this is one step closer to getting that done. >> megyn: now what jumped out at me, the guy how heading up the sierra club. >> yeah. >> megyn: and who won here, defeated this power plant is a guy, our viewers may remember his name. al armandarus and used to be a top official with president obama's epa and forced down after a youtube talking about a message and overseas he oversaw texas with the epa and

talking how he gets the companies in line and we've got quote here, at the time, it was kind of like how the romans used to conquer the villages in the mediterranean, go in a little turkish town somewhere and find the first five guys they saw and they'd crucify them and then you know that town was easy to manage for the next few years, and so he was forced out in the wake of that, and now, he's heading up the sierra club and continues to cause problems for these coal plants down in texas. >> reporter: two years after he said that he's head of the beyond coal campaign for the he sierra club and they have said explicitly, their goal is to move texas off of coal fired electricity and into cleaner energy sources. >> megyn: yeah, it's an interesting case, lauren, thanks so much. >> reporter: all right. >> megyn: republicans are already calling this morning's court ruling on the president's recess appointments a big win for the constitution. what does it mean for the country's labor board. this is the nlrb is important, they decide important matters and there's a reason why

president obama felt so dedicated to getting these guys on the nlrb that he took this risk and did it when the senate may or may not have been in recess. and of course, it wasn't. what does it mean now. what happens to the board? what does it mean for union disputes? jay sekulow and julian epstein after the break. and al gore on the circuit to plug his new book. we'll look into questions why he sold his tv network to a broadcaster once staged an onair party for a convicted terrorist, and a terrible situation made worse as hushi hurricane sandy victims suffer through a cold snap without power, they're not happy and we'll check with them. >> these are people that are suffering, and we went to see their homes, they're going to hear us, this is not the end of this. we're not going to roll over and play dead.

>> back now to the breaking news that is our top story right now. a federal appeals court ruling that president obama violated the constitution when he side-stepped the senate and filled over positions on the national labor relations board. the ruling that raises questions about hundreds, hundreds of decisions issued by that board, most of which have been very pro labor for more than a year now. do those stand? are they void? are they thrown out? who is on the nlrb right now? can it even adjudicate anything? lots of questions and we'll get answers. jay sekulow, the center for law and justice and one of the attorneys, one of the victors in this case, filed a friend of the court brief on the case arguing the administration had violated the constitution. and julian epstein, house judiciary committee and former staff director of the house government reform committee. gentlemen, welcome back, wow, so this was a unanimous decision.

i guess, congratulations to you, jay, are in order since you had a hand in this. i think a lot of our viewers know, nlrb adjudicate disputes between company and labor, explain the significance of this ruling. >> well, you actually said the significance at the beginning of your introduction to this issue and that is these decisions that have been made by the nlrb since the appointments and the president made, so-called recess appointments the three-judge panel has now ruled invalid from their inception, which means there was not a quorum of the nlrb and those decisions are null and void and of no effect. >> megyn: there's normally five members on the nlrb. >> yes. >> megyn: and he put three people on, two men and a woman and the courts as if they're not there the past year. >> the court said from the beginning, from the inception the appointments were basically unconstitutional and we represent the speaker, john boehner, in this case, and i tell you, i think this is a great win for the constitution. and the separation of powers. i know my friend julian is

going to disagree, but i think this is a very important signal that the president is a president,'s not a monarch, he doesn't get to make theys decisions by himself. a reason we have advice and consent in the constitution and i think this is a big day. no doubt about it. >> megyn: julian, your thoughts? >> well, if jay wants to say this is a decision of a monarch, then he would characterize former president bush as a monarch, former president bush made somewhere in the order of 171 of these appointments. these are appointments that have regularly been made by presidents. president clinton made 139. and somewhat what the court said here, different from what other courts have said, is that presidents cannot make recess appointments one, between congressing or two, between sessions of congresses which occur at basically the end of the year for a very short period of time. presidents since we have all known about, since we can remember have made recess appointments on things like summer recesses, when congress goes away for the month of august. so, what the court is now

saying, it's their interpretation of the constitutional power to make recess appointments under the constitution, limits the president's ability to do it except in very, very narrow time frames, that's a rule that's never governed presidents before this. >> megyn: no question that president bush made a bunch of recess appointments. >> including one of your contributors. >> megyn: however, however, there was a question here right from the very beginning about whether president obama could do it under this particular recess. this is a unique thing and the senate pushed back almost immediately. >> right. >> megyn: explain that to us, jay. >> well, it's because there was actually business being done. they call it pro forma, bills introduced, panels set, legislation signed, including debt limits and increases in various commerce bills that came through. so the fact of the matter is, the congress was actually working here, megyn, and you know, julian likes to cite president bush and these others. let's look at at what the constitution said here, recess appointments for the first hundred years of our constitution were rarely ever

used by a president and it was when the congress was in the recess. and all the court would here say what the constitution says, which is when the court's in the recess, a recess appointment can be made. when it's not, it's not. they were here. >> megyn: julian, you have been right on many predictions on "america live" and i want to give you that upfront. >> he's done well. >> megyn: however, you were not right on this one. when you came on and said i think there's no chance that will be thrown out of court. >> i don't think that this case is over. i think this would be appealed to the supreme court, and-- >> doesn't mean they have to take it. >> chief justice roberts, well, i think you will because you've got a conflict now, i think that chief justice roberts invited, asked the question to the deputy solicitor general in a previous case, why couldn't the president simply use the recess appointments to similar case toss this. to jay's point, a hundred years ago we didn't have congressional schedules the way we did and more importantly, this was a pro forma schedule during which

president obama made the appointment and there was very little business going on. they were coming in for a minute or two. >> but there was business going on. >> and the purpose for keeping the pro forma sessions was to prevent-- >> prevent the president. >> from making recess appointments. again, what we're talking about is setting up -- and the courts can do this, setting up a new set of rules for president obama that haven't applied to any president in the last 50 years. >> megyn: has there been a president trying to do it when the senate was in the pro forma or was this the first, a first by president obama. >> go ahead, jay. >> the fact is that president obama was the first one that did this while actual business were going on and house and senate was not in recess, or a recess. >> megyn: let me ask you, jay, what does it mean. this is important, if they appeal to the supreme court and wait and see if they take, but even if they take it, wait for briefing ar arguments.

what does it mean now, jay. are the decisions over the past year void? there have been important decisions from the nlrb last year? >> they're void. the three-judge panel at the u.s. court of appeals from the district of columbia said they were invalid from the outset and the decisions were not a quorum and those decisions from the nlrb, void, period. >> megyn: what does it mean for a practical matter, julian, for the companies out there and the unions who received rulings from this board? i mean, it's somewhat chaotic? >> it means total chaos and i agree with jay that it probably does mean they're void unless the supreme court in appeal wants to stay that part of the d.c. circuit decision, which they could and look, you've got two former officials in the bush justice department, in the office of legal counsel who have basically said that this pro forma session is just, it's a total artifice, and they

basically backed up the legal position of the obama administration when he said, look, when they said, these recess -- these artificial recesses that the senate was taking, they were really not conducting any serious business so in fact, they were in recess. >> you're talking about something that's deep into the legal weeds here. >> megyn: go ahead, jay. >> they did say it was wrong and disagreed with julian just said and everything the obama administration said. >> and everything the bush officials said. and everything the bush officials said and not necessarily-- >> for now the only thing that matters is what the court said. the d.c. circuit court of appeals said. >> correct. >> megyn: and that's for today. >> and that's-- >> may not be the last word, you won one, jay. >> finally won one. >> and in the favor, this was nice for a change. >> megyn: great debate, you guys. and great to see you both. >> thank you, megyn. >> megyn: all right. coming up, al gore is reportedly going on the road trying to gin up support for his new book on global change,

climate change, right? just weeks after pocketing 100 million dollars from one of the world's biggest oil producers. up next, a look the at the questions the former vp may face when he meets the media and katie couric did a lengthy interfew with manti te'o. dr. ablow is here.

>> interesting story from atlanta today. where a would-be robber came face-to-face with a wheelchair bound vet. he was watching tv and heard a sound. he pulled a gun and sent the man running, making it clear he wasn't going to backdown. >> it was going to be me or him, one of us has got to go, and this is my house, my home. find something else to do besides trying to rob people

because you come real close to losing your life yesterday. >> megyn: police are still looking for the attempted burglar. as for mark sikes, he's keeping his gun even closer these days. speaking of guns, a new effort is underway to ban assault weapons from some school campuses. outside of l.a. this in response to a move to arm officers in the fontana unified school district with rifles. the police chief wants his officers to be prepared if they encounter a well-armed gunman, but critics worry those weapons could fall into the wrong hands. trace gallagher, trace? >> reporter: it's a fascinating dichotomy in southern california. here in the county, congressional representatives, and board, all supporting ban on assault weapons and 40 miles at fontana, and the

school district believes the assault weapons are the main way to protect their students. they bought 14 rifles to arm their campus officers. and they were before the newtown school district because the police chief says, i'm he quoting here, the rifles are designed to increase shooting accuracy and provide school officers with more effective power against assailants, particularly those wearing body armor and the local police chief offered this, listen. >> it's unfortunate that we have to have that, but it is the best message we can send to anybody who thinks to harm our children. because the message we're sending is not here, not now. we're prepared for you and if you seek to harm our children, we will neutralize that threat and you will most likely be killed. >> reporter: they important to know that several school districts do have these types of weapons, but most keep them locked in patrol cars, fontana's have been locked in lockers on campus, and they

cost $14,000, thats below the threshold the school board demands to give approval for the payment, but a school board member said had she been notified she would have voted no. listen to her. >> if a person who had the intention of coming to kill know we have the er-16, they might come with something even bigger or better they will come prepared. >> reporter: but both the mayor and the superintendent of fontana schools, which by the way is in san bernardino county outside of l.a. county, say that these assault weapons are the best way it protect their campuses. 40,000 students and they think this is the way to do it. >> megyn: trace, thanks. new question whether there is a gap between what america wants from washington and what the president is planning for his second term. we'll compare new pew polling to the president's agenda and we'll see what's left. plus, after a tourist finishes his pricey meal at a famous

new york steakhouse, forgot his wallet. haven't you had this nightmare, it's a mistake that cost him the next two days in jail. really? kelly's court takes on the case and you're rights if in should happen to you. katie couric got the interview of a notre dame football player in the middle of a hoax, about a girl that did not exist. and what this young man said and how he said and it what we think it means. >> and say to you, i can see you, i don't know why you can't see me. >> correct. >> did you think that was a little weird? >> to be honest, no.

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take advil, and maybe have to take up to four in a day. or take aleve, which can relieve pain all day with just two pills. good eye. >> misery without end for the victims of super storm sandy. nearly three months after the devastating storm thousands are still without power. some are even camping out in tents, living like refugees in the united states of america. camping, as the temperatures dropped to the single digits and the residents asked, where is that federal help we were promised? >> you walk down here and made promises to us. you shook our hands, you talked to me face-to-face and said you were going to cut the red tape. where the heck is the red tape being cut? 'cause i sure haven't seen it. >> megyn: david lee miller is live from staten island now,

david lee. >> reporter: over my shoulder off in the distance you can see a pile of debris. the pile of debris used to be someone's home and then superstorm sandy struck and city had to tear down what's left. to my right, a tent city has been set up by volunteers, pallets of food and there are warming shelters, dozens of them, but close at four o'clock. this tent city is open 24 hours a day, inside, heat, food, television set, a small number of people are using this facility 24 hours a day to sleep here. we talked to a retired bus driver, told me his home is being rebuilt. he has this place to go the at night, but he comes here for the warmth of a sense of community. listen. >> this is a place where we can get information, where the whole community comes together. this place is so valuable, it's like the diamond in a desert, okay? and this is the one real

valuable thing out here right now. >> reporter: the question on the minds of many now, megyn, this tent city so badly needed, its future somewhat in question and say it's going to snow, possibly snow heavily in the next few hours and residents are worried that these tents will be able to withstand this next storm. back to you. >> megyn: what a story, with the american flag lying in the background, david lee miller, thank you. well, the president is kicking off his second term with an agenda that includes gay rights, immigration reform and gun control. but a new poll is raising questions about whether there is a disconnect between what the president wants and what the american people want. according to the latest national survey by the pew research center, americans feel the top three priorities in 2013 should be in this order, number one, look at the numbers, number one by far, strengthening the economy. 86% say that's number one for them. number two, improving the job situation, 79% say that's what

they want focused on and number three, reducing the budget deficit at 72%, that number on the budget deficit is up 20 points from when president obama started his term in office. so, those are the priorities of the american people. and does president obama have his eye on the ball? joining me now to discuss it heidi harris, the host of the heidi harris show and if you look at the agenda items spelled out in the president's inaugural address because he's talking about gay rights and immigration reform and climate change, heidi, and the american people seem to be talking about something very different. >> they are, and it's interesting how he didn't spend any time at all on the economy, building bridges and roads, that's really not going to improve the economy and that's pretty much all he said about it in his speech. it shows that he's not listening to what the american people want. and doesn't surprise a lot of folks, his vision of america,

we on the right believe, is very different from the vision of measured america that our founders had and seems he's trying to take us in a different direction. >> megyn: what did you make of it, leslie. and not lot said about economy or jobs and the deficit, i understand it needs attention, but sort of defended entitlement spending. >> well, first of all, one of the things that we know that any president runs into regardless of their politics, they have so much on their plate. one of the first priorities of our commander-in-chief is to keep us safe and i think after all of the recent massacres at hands of guns, the president felt compelled and urged by many citizens and other polls and emmerson had a poll yesterday showed that 52% of the people want some kind of control on guns, certainly in the infringing on the second amendment. the president is not going to ignore job creation and we need to be realistic and i think the president is being. the president says,heidi, you

talk about infrastructure and that create jobs and helps the economy and those are number one, two and three across the poll. and you talk to somebody in new jersey, that's not the case right now. global warming is huge. infrastructure is huge, because they're recovering is one example from the superstorm, superstorm sandy. >> megyn: nationally we've-- >> and freezing our butts off in new jersey, and complaining about global warming, a real problem. >> megyn: and it's not just the pew poll that points to these, i mean, jobs, the economy and the deficit as being huge for the american people. the thing that jumped out at me in this heidi, the things that leslie mentioned are at the bottom. you can say, okay, they care about gun control and especially in the wake of newtown and the shootings. but they're at the bottom three of the bottom four, gun control, infrastructure and addressing global warming. his priorities are down here and the priorities they're

focused on are way up here. >> yeah, absolutely. we all agree on one thing, crazy people shouldn't have guns. of course, we all agree on that, that's obvious. that doesn't mean you take away my gun rights, although the numbers are up, as far as people being concerned about gun control from a couple of years ago, ultimately, people say, that's not going to solve how many bullets i have in my gun. that's ridiculous and not focused on things that americans are concerned about, every day when they sit there at the dinner table and figure out how they're going to pay their bills and when the house value is going to come back and that's what they're concerned about every day. >> megyn: where is the leadership on the deficit, leslie? where is the white house coming out and saying, this is how we're going to get it done. >> well, part of the problem here is we have a divided congress. and that's not an excuse, and again, it's a reality. the president sits down, and when we have a fiscal cliff deal, what is it? it's a temporary fix, because, it is, okay, we're going to do this at point a, point b, laterfore point c and the same thing with the debt ceiling.

everything we do is temporary and this is especially with the gridlock between the republicans with a majority in the house and democrats in the senate. this doesn't, you know, excuse the president from sitting down and talking about the issues, but i don't feel that he's said, okay, these issues don't matter and i don't think they've been on the back burner, i think everyone is very clear with where the president stands as to what his ideas and the democratic philosophy is with regard to job creation, and what we need to do with the economy. the republicans are clear. congress needs to sit down and work this out. the president's not their baby sitter, not running a day care center and the american people need to make our congressional electorates and our senators that are elected, we need to make it known what we want. those are our priorities and by the way, heidi, yesterday, california lowest foreclosure rate in the month of january in years. and that's a step in the right direction, economically. >> megyn: go ahead, heidi. >> and a lot of those houses, make payments on for a long time need to be put on the market and haven't been.

president obama talked a little about deficits, talking medicare, medicaid and social security and actually said look, strengthen up as a nation, how can government programs and keeping people on government programs strengthen us as a nation? that's not putting us in the right direction. >> megyn: we're going to talk about it next hour. it used to be one third of federal spending, those programs, and now they're two-thirds. and we haven't had a budget in four years, but getting a balanced budget and then tackling the debt and no one seems to be taking the lead on that right now in washington. ladies, thank you both. >> thank you. >> thank you, megyn. >> megyn: when senator dianne feinstein followed out her weapons ban she brought out a pastor, and others, and what miss feinstein calls the cross lobby. and katie couric sitting down with the now famous notre dame football player discussing his

role in a heart wrenching hoax about the death of a make believe girlfriend. did he convince you that he wasn't in on it. dr. keith ablow has some interesting insights after the break. the video of escape of a thief. how he handed up in the hands of the police and how he tried to get away and almost lost a important piece of clothing in the process. ♪ hi. i'm henry winkler.

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cancer, had a car accident and ultimately she died and they gave the team football in her honor. well, it all turns out to be fake and now the only question is whether he was in on the hoax. he sat down with katie couric and maintained with her that he was duped into thinking he had a loving, online relationship, with a girl he never physically met or even saw. saw a couple of pictures and dr. keith ablow is a psychiatrist and part of the medical a-team. get your take on what we saw yesterday and his denial before i play some of the more interesting sounds, doc. >> well, my take is this, megyn, whether manti te'o was part of the conspiracy or not, he says that he did maintain the conspiracy's forward momentum by lying to the media. that's something for people to consider as to his character if they choose to, but may also understand the emotional investment he had in not wanting to come forward with what he saw as embarrassing and yet, i'm not prepared to

call someone well psychologically who can maintain a three-year relationship and say he's in love with someone he's never met. i don't think we want our culture in a place where we say that ghosts can be proper lovers for three years. >> megyn: all right. now you've set up this, the following exchange perfectly because katie couric asked him about that. sound bite number two for the control room. let's listen to it. >> i'm sure you're bmc, big man on campus, reportedly very well-liked very popular. >> i hope so. >> you go to notre dame, i'm imagining there are a lot of nice young women who go to school there. why wouldn't you want a real girlfriend who you could actually spend real time with in person? >> yeah, well, this lennay person, there are so many similarities. she was polynesian supposedly,

samoaen and i am, and the faith, and i'm mormon and she knew about that. and i found a lot of peace and comfort in being able to talk with somebody, they knew my standards, my culture what is expected of me and i knew what was expected of her. >> megyn: if you believe him, doc, he was targeted by this guy who reportedly use add woman to purport the hoax and they were playing on his heart strings and knew exactly how to make him feel attracted to this online character. you know, and that can't happen to a well person? >> well, number one, if he wasn't in on it is a good disclaimer, megyn. but secondly, no, i don't think that someone who doesn't need psychological help, and one could argue we all do, can say that this lennay person, even after the hoax is revealed, lennay person, she's not a person, she's a fantasy,

and it would be no tribute to all the work that psychiatry has done to help people to suggest that she didn't -- this fantasy didn't serve a real purpose. what did it do? it prevented him from having a real relationship, which one might wonder, is he uncomfortable, uncomfortable with intimacy, i haven't evaluated him and i don't know the answers to to these questions, no way you can say you're in love with someone you never met and not go to her bedside when she might be dying unless you have a real issue with intimacy and you want a fake relationship in order to answer questions for yourself that you're not comfortable with. >> megyn: he wasn't really able to explain to her why, when lennay was on her death bed he tried to get on an airplane and see her, wrong flight or wound up in san diego are three hours from where she was and never bothered to push to go the rest of the way, but you may be intimating, i don't know, but a lot of people have been

speculating, maybe he was gay and created a fake girlfriend because a would-be nfl player and she asked him about that. watch this. >> one of the theories, many theories, manti, making the rounds somehow you create this had whole scenario to cover up your sexual orientation. are you gay? >> no, far from it. far from that. (laughter) >> your thoughts? >> well, you know, it wouldn't have to be sexual orientation necessarily that makes someone create a fake screen to hide behind in terms of an intense heterosexual relationship. it could be being abandoned or feeling abandoned by someone in your life, early in your life perhaps such that you never allow yourself into a truly intimate relationship and a ghost is a good way to prevent that. and so, for three years, he was able to do that and the answer to why tonight you go see her when she was dying, if you thought she was, and

thought she was real is better answered because i'm terrified of intimacy, because people left me, perhaps, i don't know, when i was in need. we don't have the answers, but they exist, i promise. >> megyn: doc, thanks for being here. up next, new questions about al gore. i tried weight loss plans... but their shakes aren't always made for people with diabetes. that's why there's glucerna hunger smart shakes. they have carb steady, with carbs that digest slowly to help minimize blood sugar spikes. and they have six grams of sugars. with fifteen grams of protein to help manage hunger... look who's getting smart about her weight. [ male announcer ] glucerna hunger smart. a smart way to help manage hunger and diabetes.

>> al gore is going on tour. 's going to be part of the bolder fresher-- no, no. the former vice-president is hitting the tv talk circuit to promote his new book. along the way he may face tough questions selling his tv channel to al-jazeera, and dennis neal with more. >> and the question, is al

gore a big fat hypocrite? he hates global warming and nat gas drilling, but he sold his network to al-jazeera. a giant in nat gas and between rich and poor and personally pocketed 100 million in that deal and he has a new book out and going on tv to promote it even as bashes the media. entitled "the future, six drivers of global change" 558-pages of wonky preachy prose and smacks the media that love him for running image adds for energy companies for campaign ads that force politicians to take money from big business and failing to stoke public outrage because the network just want to sell us stuff. now, gore is going on letterman and today show on tuesday, and he meets jon stewart on the daily show on wednesday, this could get awkward. even the new york times, a fan of al gore took a shot at him

saying al-jazeera's deal hypocrisy and greed and refrain from editorializing and we'll see whether the talk trio asks tough questions why gore agreed to sell out to it al-jazeera. you know, a mirror of the arab state of qatar that controls the network and donated 400 million dollars to the terror group hamas, and held a party someone released from israel prison. and our former vice-president in the new book calls al-jazeera feisty and relatively independent. feisty, that's what that is, megyn. >> megyn: you're feisty, too, dennis. >> thanks a lot. >> megyn: up next, vice-president biden is launching a gun controlled road show at the same time chicago's mayor is now very publicly and very severely pressuring banks who do business with gun makers not to do so. he's going directly to banks

like bank of america saying don't have anything to do with these gun makers. we'll have a fair and balanced debate whether that's appropriate. plus as many of us head to the gym to try to shed pounds, one group of clubs is using a unique approach to try to attack members, and this was a bit of a surprise. living with moderate to severe rheumatoid arthritis

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>> fox news alert on the democrat's growing push to win new support for gun control laws and an assault weapons ban. welcome to america live, everyone on a friday, i'm megyn kelly. we just received a video moments ago as democrats take the next step in a national campaign to help blunt the political power of the gun lobby. vice-president joe biden dispatched to virginia today where he went to the virginia tech campus to try to rally support for the administration's proposals. perhaps more significant, chicago's mayor, former chief of staff to president obama, rahm emanuel is now trying to pressure private banks into not doing business with gun

manufacturers. he wants them to cut off credit lines to firearm companies that don't get on board with president obama's gun control measures. chris stirewalt is our fox news digital editor, on power play.com. let's start with mayor emanuel. wow, what right does he, as a public official, he's not a private citizen, but as a public official try to go in and strong arm private banks into not doing business with law-abiding american companies with whose agenda mr. emanuel just happens to disagree? >> well, look, from the point of view of those folks who are interested in pushing a gun ban, what wouldn't you do to save a life, if guns are the cause of the problem and are killing people, what wouldn't you do to save a life? and if that includes arm twisting in a very chicago-like fashion, i might point out, of some financial institutions, that would be -- would not give you any pause

and in fact, i'm sure that mayor emanuel would like to see his old boss, president obama, try something similar on the national level using regulatory bodies, and i don't know, the department of the treasury, and others, to put the squeeze on lending institutions. >> i mean, this is, have we had any reaction from bank of america or is bank of america and td bank, who are, you know, being told by the mayor, just don't do business with them. just cut them off. cut off their lines of credit until they get on board with me and my pal the president. >> i think other than probably an audible gulp, we haven't heard anything yet. i don't know that we will. but look, the truth here is-- >> let me just stop you, hold on to the truth is here a second because i do want to hear it. (laughter) >> i want to know the truth. how far could rahm emanuel take this? let's say he goes to bank of america and says, don't do business with a single republican, or democrat, for that matter 'cause there are democrats against this gun push. don't do business, don't allow them to have a mortgage, don't

allow them to have an account with you, until they all get on board within support the president's agenda and for that matter, don't do business with anybody who doesn't support president obama on anything. if you have a pro lifer, a company like chick-fil-a don't do business with them. and anybody who does business with them, we'll put the pressure on them, bank of america, if they have a line of credit with you. >> they already did it with chick-fil-a, that happened in chicago with chick-fil-a they wanted to come and sell the delicious fried chicken sandwiches and the mayor in the city of chicago said we don't want you here because you are intolerant of same sex marriage and so on and so forth and chick-fil-a, here is that word again, crawfish, they had to go back again and well, we really were talking about there, and we're sorry, we're inclusive and they had to do what mayor emanuel wanted them to do in order to do business in chicago. so they've already been there. >> megyn: i don't know whether

this is legal, i don't know whether this is legal. the second amendment is a constitutional right, it's in the bill of rights and to penalize somebody for exercising that right, the gun manufacturers, who are making perfectly lawful firearms, as of today, to try to have a public official try to punish them in their business relationships, there's a real question whether that is legal behavior by rahm emanuel, as there was a question whether he was behaving legally when he did that stuff with chick-fil-a. all right, but the truth is, what? >> this isn't about-- the truth is, and you see this from mayor emanuel today, you see this in the list of guns that were on the banned list from senate democrats yesterday, that by the way, didn't include what was in-- what was involved in sandy hook or at much of what was involved in sandy hook. this is an issue to deal with guns as relates to street crime, urban violence, in the drug trades and the same stuff

in the 1990's, this is the resumption of a drive by people like emanuel, joe biden and eric holder back in the deal to revive what they failed to accomplish in the 1990's. these are not-- rahm emanuel is not talking about mass shootings, he's using the energy surrounding mass shootings to try to do what democrats wanted to do for a long time, impose a fairly strict gun ban or hard or exexpensive to get a gun. >> megyn: yesterday we heard that democratic senators, blumenthal and murphy, saying the gun ban they're pushing for now on the federal level would have prevented newtown or prevented some of the carnage in newtown, saying that these guns that were used in newtown would now be banned under the legislation they are pushing. listen to chris murphy yesterday. >> kids would be alive today in newtown, connecticut, if the law that we're proposing today were in place on

december 14th of last year. it's as simple as that. >> megyn: now, what evidence is there of that, exactly, chris? >> none that i'm aware of. now, what proponents of the gun ban say is that if you had-- if shooters did not have as many bullets, if they had smaller magazines, that they would take them longer and they would be subdued before they could do as much damage. before they could kill as many people. there may be truth in that. we don't know, we simply don't know exactly what happened, we haven't really heard, we don't know whether that would have been a factor. we know that the shooter in newtown, had a 30 round magazine, what he was using and would be banned under senator dianne feinstein's proposal and did most the killing with ar-15. that would not necessarily be banned, but the ammunition would and he had two semi automatic handguns which would not be banned either. >> right, it's the pistols that we see time and time again, that it's the pistols that are really in these mass killings, really the problem.

but they're not addressed in what's being discussed, those guns. >> megyn: chris, that you for being here. >> you bet. >> megyn: the truth is-- we should name his segment that, "the truth is" with chris stirewalt. he's laughing, i can see him. thank you, chris stirewalt. another interesting debate on the gun debate. and dianne feinstein invited a pastor to speak on the ban, the proposal that she introduced. later on the show we'll see if the second amendment might soon be facing heat from what one senator is calling the so-called quote, cross lobby. is this a religious thing? . >> the humanitarian crisis in syria has been raging for some 22 months, but it's hard to fully grasp the massive loss of life in the civil war there from so far away. sometimes one picture can tell the story, like this little girl, looking up to the sky

after hearing the sound of shelling. look at this child. as she sits on a toy pony in the playground of a school in the hard-hit city of alepa. our leland vittert got a chance to deal with the jordanian military as they deal with thousands of refugees that flee in the wake of the conflict and patrol. >> and he's from amman, jordan, with the latest, leland? >> reporter: megyn, of course, they're dealing with thousands of refugees every day, including a lot of children exactly like the little girl that you just showed and the colonel that i talked to, who is a hardened warrior, you can tell it had a physical effect on him when he would see these refugees come across. he says, i have ordered my men to treat these people as though they were our wives or our children. >> if there wasn't a war going on, the canyons separating jord and syria could be a

tourist attraction, but for syrians escaping the violence, it has become the valley of death. a jordanian military journal pointed out to us where the syrian artillery landed on the roofers and refugees must take down these hills to safety, where jordanian soldiers drive them up the other side. they arrive at a forward operating base, 50 at a time, truck after truck of mostly women and children. the men are dead or fighting back in syria. >> this is the refugee processing line and you'll notice these people don't have anything with them. that's because they left their houses, whatever they could carry for a long and dangerous journey. so standing here, you end up asking yourself, if i had to leave my house in the middle of the night, what would i take with me? what could i carry? what's most important? for emma, it was her son. they were both wounded when a rocket hit their house. he cries in agony from the pain. what can i tell him about his

wounds, she asks, they are terrorizing us, she said, of the syrian regime. >> reporter: right now inside jordan, there are hundreds of thousands of refugees and megyn, one of the camps we were in, 86,000 refugees in one camp, many of them children who are obviously now trying to figure out how to put their lives together and parents are trying to explain to them what has happened, but to give awe idea how jordan is feeling the syrian crisis is going to go, they're moving them from tents to what we say in the united states, trailers or double wides, it's measured in years not months before the people would be safe enough to head back to syria, megyn. >> megyn: you look at the situation in syria and all you think about the folks, they're the lucky ones, they got out, they're alive and they're together. and for now, that's going to have to be enough. leland vittert, thank you, good report. well, serious new concerns

about boeing's new flagship aircraft. what investigators are so worried about that's already forced airlines to ground dozens of plains. plus, a forgetful moment lands a tourist in jail when he realizes he doesn't have his wallet after dining at a new york city steakhouse. and i've worried about this a million time. where is my wallet, my money, where what i do with my cash? two days in jail, is that what we're going to face? is this legal? we'll talk about it in kelly's court. during the inaugural address, the president tried to dismiss the debate over expansion of america's entitlement program. up next, the question about makers, takers and america's future. >> they do not make us a nation of takers, they free us to take the risks that make this country great. ÷÷

. >> fox news alert. breaking news on the big story from last hour.

a federal appeals court ruled earlier today that president obama violated the constitution. the president made three appointments to the national labor relations board without congressional approval. he claimed the senate was in recess and these were recess appointments. the senate said we were not in recess and they argued he had overstepped his bounds and the d.c. appeals court ruled against president obama unanimously and now the three appointments are essentially void and it said void from the beginning. so now we have three vacant seats on the five-person board and every ruling they issued since the three people were put on the board is now, apparently, nullified. here is the reaction we just got in from the white house. >> the decision is novel and unprecedented. it contradicts 150 years of practice by democratic and republican administrations.

so, we respectfully, but strongly disagree with the ruling. there have been, according to the congressional research service, something like 280-plus intra session recess appointments by again, democratic and republican administrations dating back to 1867. that's a long time. and quite a significant precedent. >> megyn: the white house says we will hear from the doj on whether they plan to appeal the ruling. >> the commitments we make to each other through medicare and medicaid and social security, these things do not sap our nation, they strengthen us. [applaus [applause]. they do not make us a nation of takers, they free us to take the risks that make this country great. >> megyn: that was president obama this week during his inaugural address, trying to deal with recent debates over

quote, makers and takers in this country. the president defending entitlement programs saying they're essentially a hand up, not a hand out. and now there are growing questions over the true impact of the explosive growth of these programs and what it is having on our country shall the impact it's having. joining me ben ferguson, the most of the ben ferguson show and julie raginski, from senator lautenberg and fox news contractor. >> megyn: he talks about 1960, social welfare programs, a third of federal spending and today, two-thirds. welfare almost twice as much as justice, and defense, everything that washington does combined. >> it's incredible and you look at our numbers and look at our united states government and what we really are now, we're a big country that takes from workers and gives to those that do not want to work and there's a big difference between those that

are disabled, because that's what you're going to hear president obama and others talk about. well, we're helping people that need help. i'm in favor of that, but when you've got 8% of men in their 30's, who are opting out of going to work because they don't want to go and then we pay for them not to work? i mean, that's a -- that's a huge problem in this country because we are now allowing people to make bad decisions, which is what's great about america, i mean, the fact that i can choose not to work is awesome, but the problem is i'm now, as a worker, held accountable to take care of a human being who is being an idiot and not disabled and that's sucking us dry. we've made it acceptable for you to not work and someone else pays for it and we're going to run out of money. >> megyn: and no question that there are abuses of the system, but medicare, look, that's not entitlement and i pay into it and everybody who gets a pay stub, social security and medicare, i'm paying into the system now and when it's time i'm going to get paid back, they tell me.

>> yes. >> sure, i am, that's what they say. >> fingers crossed we're going to get paid back. and there's a huge difference, i'm not sure what ben is alluding to, we're talking to the entitlement programs that cost a lot of money and it's primarily medicare, which i pay for every single week and comes out of payroll tax, and taxes, and social security which i pay for, and medicaid, which quite honestly pays for the majority of the people here in nursing homes, all of whom have paid into the system. >> megyn: and that apparently is a big number, the medicaid payments according to the article, according to the wall street journal, only a third of the americans receiving the money are seniors with social security and the rests are means tested entitlements like medicaid. but honestly, you know, people think that medicaid are people just living off the government dole. medicaid pays for the majority of people going to nursing homes, for example. so, you know, these are our grandparents. >> megyn: my grandmother--

>> and go ahead, ben. >> i'm in favor of your grandmother getting the money she paid into. the problem you have people who figured out how to work the american system and go to the doctor and say, my back hurts. okay we'll try a couple of treatments, it's still not better or better than that, number one claim of 40 year olds going on disability is mental anguish, i'm just too sad. well, guess what? go be sad and go to work. i mean, this abusing the system when we allow people to claim that they're just too sad to go to work, that has nothing to do with mental health and when you see these numbers skyrocketing over the last decade, how many people are signing up this way, that's when you know it's a loophole and we're not fixing it and i don't understand why. >> megyn: there used to be more of a stigma on accepting social security and medicare-- i'm excepting medicare and social security, but a stigma of taking welfare or disability checks, whether it was questionable whether you

truly needed it or deserved it. >> we've been talking for weeks that mental health is something that's not a joke and want to address that before you go to a work with an ak-47 and blow me away. >> i agree. >> i don't know where you think this massive explosion in the federal debt is because of people who refuse to work and sitting at home eating bonbons, and may be a few people. >> the facts that-- >> there may be a few people like that, but the majority of people on entitlement programs are going to pay for legitimate people, seniors and others, who paid for the system and frankly, rather they have the health care they need and i have health care going down the line. >> megyn: i've got to run, we're coming up against a break, but no question we need some reform and raise the retirement age for the younger folks like us, or going to have to do something, either way we're going to run out of money. we're going to get that social security, get that medicare, we'll he see. >> fingers crossed. >> megyn: all right, ben and julie, thank you. >> thank you. >> megyn: ahead, look how one senator is looking to recruit

god into the gun control debate. is that appropriate? plus, a health club chain using a way to attract a specific group of members. ♪ ♪

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>> investigators are releasing new information about problems plaguing boeing's new flagship dreamliner aircraft. n.t.s.b. says it has evidence that a battery short circuited and one calling it a serious safety concern ap the battery caught fire shortly after landing at logan's international airport and everyone got off safely. all dreamliners are grounded as this investigation

continues. new year, new you. it's a familiar slogan for millions of americans right now. how is your workout routine going since january 1? i mean, i've been to the gym not once. (laughter) how about you? but folks are hitting gyms nationwide to shed a few unwanted holiday pounds and one health club in texas taking a unique approach, catering to folks who may be intimidated by the gym scene and the hook, members can only join if they're 50 pounds overweight. casey stegall live with more. >> i have something to make you feel better, i've fallen off the wagon, too, and the equipment is designed and engineered for larger clients. the threreadmill, it's wider, ad it's not driven, it's by

walking, and there are no mirrors, or glass, for privacy. and all about support, your trainer is calling you if you're a no show and a helping you eat right and the clients are seeing success. >> how much weight have you lost. >> 120 pounds. >> how long? >> 18 months. >> and what on earth do you feel like now? >> amazing. i feel like a brand new person, it's just been such a transformation. >> reporter: amazing, right? and down size fitness has about 200 members between its dallas and chicago locations with plans to open in more locations this year. the price by the way, comparable to other monthly gym memberships, so, the big question everyone wants to know, what happens when it works? >> whenever a member does reach their 50 pound goal, whether from losing 200, 100 pounds, whatever they have to lose, to get to their goal,

they can remain a member for as long as they want, it's really about building the community. >> reporter: and we're talking about the new years resolution, get this, it's estimated some 6 million americans will sign up for brand new gym memberships, megyn, in the month of january alone. shut off-- shed those holiday pounds. >> megyn: i think it's awesome. back in the day, like to say in another life, another body, i used to teach aerobics, and i taught spa ladies, back when i was 16 years old. spa women, the ladies didn't want to see the beefy-- you go in and don't have makeup and not feeling your best and don't want the guys looking at you. and i can see you might be intimidated all of these people super buff and-- >> megyn, i get intimidated in the gym, and you're next to someone who lives there and how much you're lifting

compared to them and it's how they feel in there. >> megyn: they're he in the safe place, have the privacy and casy stegall of fox news channel shows up and wants to put them on tv. >> reporter: happy to do it it and proud to share their stories. >> megyn: good for them. maybe they'll inspire some other folks. >> thanks, megyn. >> megyn: that's like my husband, takes our daughter to swim class and you know, she's only 21 months and takes her and he's the only dad. it's all women and all the other women have their new babies and then there's doug with our baby and like, honey, the women don't want you in there, they just had a baby, and there you are, and you know, a good looking guy, like, don't, don't-- you should get out of the pool first, let them get out of the pool after you. many i right? nobody wants to get out of the pool after they've had a baby in front of a hot guy. i digress. and when he had a steak dinner at a steakhouse, he realizes he forgot his wallet and he sets two days in jail.

and kelly's court whether the punishment fits the crime. and dianne feinstein, for injecting religion into the gun control debate? is that appropriate? that's next. >> everyone in this city seems to live in terror of the gun lobby, but i believe that the gun lobby is no match for the cross lobby. especially when we stand together as people of all faiths, across the religious landscape of america.

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>> new questions whether god is about to join the gun control debate after democratic senator dianne feinstein invites a clergyman to speak at the news conference where she rolled out his assault weapons ban proposal. ref rapid geri hall, the dean at the washington national cathedral urging worshippers yesterday to unite in favor of gun control. listen. >> as people of faith, we have the moral obligation to stand with and for the victims of gun violence and to work to end it. i believe that the gun lobby is no match for the cross lobby, especially when we stand together as people of all favorites across the religion landscape of america. i don't want to take away someone's hunting rifle, but i can no longer justify a society at that allows people other than military and police to own weapons like these or that permits the sale of high

capacity magazines, designed with the purpose of simply killing as many people as quickly as possible. >> megyn: joining me now, ben shapiro, a syndicated columnist, editor the at large for breitbart news as well and the author of "bullies, how the left's culture of fear of intimidation silences america", ben good to see you. thanks for coming on. >> thanks for having me. >> megyn: this is an eye opener, it's not the first time we've heard clergy get involved in political debates. he came out and flat-out said this is not a political issue, this is a religious issue. we who follow jesus have to stand against guns. >> he can say whatever he wants. the fact is it's dianne feinstein and other democrats to trop him out to make the argument if you oppose their gun control agenda, it's not because you really want to find a different way that doesn't wreck the rights of 300 million americans to prevent things like sandy hook, it's because you're a bad person and don't care what

happened, when he compares the gun lobby to the cross lobby, you're a morally deficient human being . and the lesson pushing for weeks now, months now, everybody from president bush to-- from president obama down all the way to, now, through the left media they've been pushing the idea that there's something wrong with us, that we don't care if kids get killed if we don't agree with their gun control agenda. as opposed to how to prevent things like that. >> megyn: we saw president obama say explicitly the reason we're seeing lines around the block for guns, ginling up fears and ginning up ratings and that's the reason and when he called for gun control, flanked by young children who had written to the white house or whose parents had encouraged them to do so, there was a question whether that was appropriate and a message to people who don't feel as he does, that you are somehow against these children or not in favor of their safety. >> well, unfortunately, this

is what the left has been doing over and over and the gun control debate is the latest symptom of this. on the debt ceiling if we disagree with them we only like rich people and hate poor people. on the gun control debate they keep trotting out children as they we should be taking policy prescriptions from seven year olds. it used to be in the country, when the president of the united states said i'm dealing with the issue because my 13-year-old daughter cares about nuclear armament, we laughed at them out of the public sphere. jimmy carter comes to mind. when president obama walks out with a bunch of seven year olds, i'm doing it because these seven year olds care about gun control. give me a break f we're taking our policy prescriptions from kids who can't spell policy or prescription, we have a problem. >> megyn: this particular reverend, geri hall, at national cathedral, a lot of our viewers know this and this is a national icon. when he comes out and says, look, i was drawn to religion in the '60s by an anti-war, anti-segregation chaplain raring to make a scene and do

the same. and this is from "the washington post," that fueled progressive religion and activism and he wants to get that going again today, saying what he wants to do is like guerilla theater. is that what it is for us when we go to church on sunday? >> inge it does, the left tries to politicize everything. i'm he a religious person, i'm an orthodox jew, not a christian, but they say that people are american taliban, but they like to push their political position because he happens to be on their side. not only that, we're against the bible, against common human decency if we don't sign off on dianne feinstein's nonsensical gun ban that wouldn't have stopped sandy hook. >> megyn: and when obamacare was passed we had a lot of priests come on the show and rabbis for the matter and talk about how they believed and

still are talking about in court how it infringes on their religious freedoms, forces them or religious organizations to cover contraceptive items that they object to morally or religiously and seen priests from the pulpit talk about pro-life and they clearly believe that abortion is murder and so on. so there are some issues that have a foot in both camps. >> they do. this doesn't happen to be one of them. this is a case where we all want to prevent people from getting killed. but they're saying our policy prescriptions are better than yours morally. your end goal is not the same. and say our end goal does not include saving lives, only preserving gun rights at the expense of human rights and that's a character assassination argument not a political one. if they want really want to get something done in washington, they should stop demagoguing and claiming we're evil if we disagree how to preserve the lives of people like the kids at sandy hook.

>> megyn: i think about that one family, that's the little cristina greene killed in the same shooting massacre that led to gabby giffords being shot, and her father came on this broadcast shortly thereafter, right after, and he is not a big gun control guy, but his wife is. so, it's in the same family, suffering the same tragedy, obviously, concerned about the lives of children, but they just had legitimate disagreements on the issues and where to go with it. even this, this gentleman, the reverend geri hall, he also acknowledges even clergy is divided on this issue and yet, wouldn't quite have picked that up if you listened to him yesterday. thanks for being here. >> thanks for having me. >> megyn: so you soon. when a tourist finished his pricey meal at a famous new york steakhouse realized he forgot his wallet. i've worried about this, where is my cash?

i think i gave it to somebody else. you never thought you'd wind up going to jail because of it. we'll tell you about the outrageous scene going down in this restaurant and whether this could happen to you. that's next. one of the great overlooked stories of the week concerned the reports, would you look at this, a researcher looking for a quote, adventurous woman to be impregnated with dna from a neanderthal man and turns out there may have been a problem with the translation. ♪

>> kelly's court is in session, on the docket, forget your wallet while dining out,

you could be thrown in jail. it happened at smith and wollensky, at the posh steakhouse, calling police when the italian tourist who dines there all the time and could pay the $208 and offered to leave his iphone when he returned with the cash and they said no and called the police. he was arrested on theft of services charges. and forced to spend the second night of his vacation behind bars. and the third night, too, we're told. and joining me now jonna spilbor, former prosecutor and now defense attorney and micke eiglarsh, and haven't you had the nightmare, did i forget it? where is it and my purse is a mess my assistant abby will attest to. and i'll say here is my name, my social security, all of this stuff and be right back with the payment and this guy

basically tried to do and yet, took him on a walk down to jail. >> unbelievable. extraordinary miscarriage of justice. listen, whatever happened to simply washing dishes, those are the good old days and stripped him of his liberty. >> or the labels. >> here is the deal, 165.15 is the state statute, it requires intent, intent to fraud. he did not want to avoid payment. he want today pay and the reason why there's the intent requirement. stuff happens, there's pickpocketers in new york, fraudsters who use your credit card without permission and puts a freeze on it or wives who pay our baby sitter and doesn't leave a note after she tabes the money in my wallet. it happens. >> megyn: you're a new yorker and you know, one of the infamous crime, ladies never put your purse on the back of your chair like you can in

most normal places in america, that's what the thieves walk right by and you have to put it on your knee underneath the table, so uncomfortable and walk ward in an address because they steal your purse. mark raises a good point. things happen, you lose your wallet or purse, i've never heard of somebody being taken to jail for this. >> for something like this and i'm going to lose this argument so let me start here. >> megyn: mark, looking good for you. >> i'll gladly pay you tuesday for a hamburger today doesn't fly when the burger costs $208. imagine if this happened at smith and wollensky anytime, ten times a week, or ten times a month, this could add up. this patron is never going to forget his wallet again. the restaurants don't do a background check and he could have got the iphone from a little old lady before he got there. >> megyn: and explain.

>> had helps my argument. >> i'm going to leave my iphone as collateral and run to the apartment and the restaurant pooh-poohed that argument and i understand why. we don't know if it's his cell phone. and the only valuable cell phone is mine, i've got megyn kelly's cell phone in it. >> megyn: it's worth at least $200 and not only that, you can send a busboy with me if you think i'm not going to return, send a busboy with me to my apartment or hotel and i'll get it and come back, look, we're not in the business of doing that. so, no. >> yeah, yeah, horrible from a pr standpoint. many people say they're never going to go to the restaurant, but also, couldn't the police i know they're in the in the business of being excourts. think of how much time, energy and money to process him in jail for several days and then the legal system and hundreds of dollars, they're going to have to wait and they had to be reasonable. >> the judge dismissed it the

next morning, as soon as he could into court. because somebody used reason. i don't know if this is a nightmare for smith and waohl lenski, and said many times nothing bad such as pr. >> no. >> megyn: and boy, people better bring money if they eat there. >> that's the message sent. right? this is a high end restaurant and you know, obviously, people aren't accustomed to dining and dashing in high-end restaurants and you know, and they sent a message to this guy. >> megyn: au contraire. >> and never forget his wallet again. >> megyn: they say that the dining and dashing business is huge right now. huge, given the economy. >> and i will concede that that's an issue and they have to look out for those types of folks. factually not what you have here and when you charge $50 on average for a peace of meat. and $14 for asparagus, it

starts to add up and some people might fall short a few bucks and stripped of their liberties? i don't know. >> megyn: i think he should have offered to dance a jig, a dishwasher. >> a jig, right. >> he's italian, sang a little opera ♪ oh solo mio . >> how did jonna get your number? i want your number. >> i'll sell it to you. >> megyn: i've got your number and that's why you don't have mine. coming up, a rescue you cannot miss, quick thinking saves a little doggy from certain death. the must-see video is next. ♪ come on and rescue me, come on baby and rescue me ♪ ♪ come on, baby, and rescue me ♪ ♪ 'cause i need you ♪

>> we don't see this every day. the dog zip lining to safety and the rescue caught on tape in a los angeles park. watch this. oh, a terrier put in a harness, hoisted on a rope and taken from the island to safety. no word how she ended up there in the first place, they wanted to keep her out of the water and wouldn't get hypothermia. and look for the owners. and why didn't they get a canoe. why a zip line and harness? that's elaborate. isn't it? if nobody claims the fogg she'll be put up for adoption, and we'll follow-up and see if they find the owners or gets a new home. harvard scientist, harvard scientist is now cleaning up a controversial debate that began with what is likely the most mind blowing misunderstanding of all time. and all over the idea that

modern scientists could soon be able to, and perhaps should clone a neanderthal and that he's in search of a woman, this scientist allegedly, to give birth to a caveman baby. we're not kidding. have you seen the headlines? and now the scientist is coming out and saying not exactly. trace gallagher has the update. trace. >> reporter: his name is george church, a prominent genetic expert from harvard and he absolutely believed that some day we will in fact clone an extinct human being like a neanderthal that lived 40 to 45,000 years ago, here is why, because scientists have recovered dna from the fossils and if you could figure it out into a human cell and make an embryo and place it into a surrogate mother, and when he did the interview it sounds $like he was looking for an adventurous

woman to give birth to a neanderthal. and scientists went crazy, he said no, no, hold on he's not looking for a woman to bear a neanderthal baby. he has no plans, projects, papers or grants, and he said theoretically possible and he thinks an animal first, something like a wooley mammoth and using an elephant as the surrogate. and he never said it's so easy a caveman could do it. >> megyn: oh, my, trace, thank you. it took more than half a century and one man finally got free candy. how a complaint he had as a teenager got the man the sweets he's been craving for 60 years ♪ the candy man can ♪ ♪ the candy man can 'cause he mixes it with love and makes the world taste good ♪ . but their shakes aren't always made for people with diabetes.

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